Five weeks ago, the judge overseeing the criminal case of Rep. Duncan D. Hunter shot down a 22-page defense motion to dismiss it.
The Republican’s lawyers said prosecutors had “lost impartiality” after two of them attended a 2015 Hillary Clinton fundraiser in La Jolla, which included a Secret Service-arranged photo opportunity.
Duncan Lee Hunter, the congressman’s father, made similar arguments before cameras July 1. Even after federal Judge Thomas J. Whelan rejected the motion July 8, he tried again — handing out 10-page documents and what he called “smoking gun” proof of a political witch hunt.
On Tuesday, the 71-year-old House retiree went before a gaggle of news cameras after a 17-minute hearing that saw his son’s campaign finance misconduct trial pushed back to mid-January.
Still he persisted.
Wearing his usual Stetson hat, Hunter repeated his assertions that Emily Allen and Alana Robinson — assistant U.S. attorneys — attended the Democratic presidential candidate’s event as fans seeking photos.
Thus, the senior Hunter contended, they have an ax to grind against President Trump and the 42-year-old Hunter — among the first to endorse the New York businessman.
In a smaller scrum Tuesday off West Broadway, Hunter was asked: Why isn’t your son’s lawyers using this at the appellate level?
“They did,” he said. “That’s been put into the motion.”
In fact, the only motion headed to the 9th U.S. Circuit Court of Appeals involves whether Hunter’s case should be thrown out for alleged violation of his rights under the “speech or debate” clause of the U.S. Constitution.
(Under that clause, members of Congress can’t be prosecuted for doing their job. Hunter contends he went to Italy in 2015 on legislative business. The government says he was on a family vacation, illegally using campaign money.)
One thing both sides agree on, however, is that the San Francisco-based court could take more than a month to decide on whether to hear the case.
That’s what triggered Tuesday’s status hearing on Hunter’s trial date. The appeals court wasn’t expected to act until weeks after Sept. 10, the original start of a possible four-week trial.
A discussion ensued over a later date. Whelan said he’d be absent the middle two weeks of November, but the idea of a Nov. 26 trial was rejected as being too close to Thanksgiving. Then a Dec. 3 suggestion was rejected for bumping up against Christmas.
Prosecutor Phillip Halpern (appearing with Allen of the Clinton event) worried about logistics of a November trial with “numerous witnesses to move around the country.”
He said: “We would prefer, to be quite honest, an earlier date.”
Whelan said: “I’d prefer last year.”
Finally, both sides settled on Jan. 14, 2020 — the year Whelan turns 80.
In answer to the judge’s question — “Mr. Hunter, is that going to be all right with you, sir?” — the congressman uttered his only words of the hearing: “Yes, your honor.”
Minutes later, his father was at no loss for words.
He again passed out paperwork containing email obtained via a Freedom of Information Act request. (The email confirmed arrangements for Allen and Robinson to have their photo taken with Hillary Clinton. The elder Hunter calls that proof they weren’t present on official business but as fangirls.)
But could the Clinton fundraiser issue be decided by the 9th Circuit?
But according to Federal Rules of Appellate Procedure, the deadline has passed for filing such an appeal. It would have been 14 days after the entry of “either the judgment or the order being appealed.”
In the speech-or-debate clause case, Hunter’s legal team has until Sept. 6 to send its arguments to the 9th Circuit. The government has a Sept. 16 deadline to respond.
On Tuesday, Judge Whelan said: “It looks like the tail end of September or the first of October at the very earliest before we know whether or not the 9th Circuit is going to accept jurisdiction.”
Because the 9th Circuit has yet to decide on whether to take the case, it remains in Whelan’s San Diego federal court. So he rejected a prosecution request for “dual jurisdiction” — meaning a trial could be held while a motion is still on appeal.
“At this point I’m not going to say … this [9th Circuit appeal] is frivolous,” said Whelan, named to the federal bench by President Bill Clinton in 1998. “I’ve been a judge for [almost] 30 years. And I’ve never had a speech-or-debate clause issue. So I’m not in a position to say if it’s frivolous or not.”
Duncan Lee Hunter, meanwhile, appeared to enjoy the frivolity of his press conference steps from the Edward J. Schwartz U.S. Courthouse.
“That’s all I have to say, and thanks a lot!” the former congressman declared after holding court. “It’s good to see cameras again. I’m nostalgic.”